DEDES et al. v. ASCH et al.

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DEDES et al. v. ASCH et al.

December 29, 1998No. 200183LC No. 89-381260-NIOakland Circuit Court

MICHAEL RUSSELL DEDES and JEAN LYNN DEDES, as
Next Friends of LAUREN LYNN DEDES, a minor, and as Co-Personal
Representatives of the Estate of ADRIAN DEDES, deceased,

Plaintiffs-Appellants/ Cross-Appellees,

v.

JEANNE ASCH and JOAN SHIFFERD,

Defendants-Appellees/Cross-Appellants.

Before: Jansen, P.J., and Kelly and Markey, JJ.JANSEN, P.J.

Following a jury trial, the jury returned a
verdict in favor of the Estate of Adrian Dedes in the amount of
$1,095,000, less eighty-five percent comparative negligence
attributed to the Estate of Adrian Dedes, finding defendant
Jeanne Asch five percent grossly negligent and defendant Joan
Shifferd ten percent grossly negligent. The jury also returned a
verdict in favor of Lauren Dedes in the amount of $52,000,
finding Asch thirty-five percent grossly negligent and Shifferd
sixty-five percent grossly negligent. Plaintiffs appeal as of
right from the trial courts denial of their motion for
apportionment of comparative negligence among the members of the
Estate of Adrian Dedes. On cross appeal, defendants appeal as of
right from the trial courts denial of their motion for a
directed verdict or judgment notwithstanding the verdict and an
order denying their motion to stay interest. We affirm in part,
reverse in part, and remand for further proceedings.

This case, which has a long appellate history,[1]arose out of an
automobile accident in which eight-year-old Lauren Dedes was
injured and ten-year-old Adrian Dedes was killed when they were
struck by an automobile while awaiting their school bus on June
2, 1989. The children were waiting for the bus on Ten Mile Road,
a divided highway with a posted speed limit of fifty miles an
hour, at the top of a hill. The children were required to cross
Ten Mile Road to board the school bus. It was disputed regarding
where the children were told to wait for the bus. Apparently, the
Dedes children were holding hands attempting to cross the road
when they were struck by an automobile driven by Anthony
Neumaier.[2] Plaintiffs alleged that Asch, the transportation
supervisor for the school district, was grossly negligent in that
she established the waiting area for the bus stop too close to
the roadway, failed to provide for pick-up on the childrens
side of Ten Mile Road, and, when she heard complaints about the
children standing too close to the road, failed to follow up to
assure that the matter had been resolved. Plaintiffs further
alleged that Shifferd, the school bus driver, was grossly
negligent by instructing the children to wait with their toes
touching the pavement of the road or they would not be picked up
by the bus.

I

Plaintiffs sole issue on appeal is
whether the trial court erred in applying the comparative
negligence assessed against the Estate of Adrian Dedes to all of
the claimants of the estate. The claimants under the estate were
Adrians mother and father, her sister Lauren (also a
plaintiff in this matter), and two other siblings. Plaintiffs
argue that the trial court should have assessed the eighty-five
percent comparative negligence against the parents only, and the
siblings portion of the award should not have been reduced
for comparative negligence because two of them were not even
present at the time of the accident and Lauren was specifically
found by the jury to not have been comparatively negligent.

We find that plaintiffs have waived this claim
for appellate review. In the present case, before the jury
instructions were given, the parties discussed the propriety of
giving a comparative negligence instruction regarding
Adrians parents. Plaintiffs counsel indicated that
there were claims in the estate other than the parents
claims and, therefore, a comparative negligence instruction
should not be given broad application to the estate. In fact,
plaintiffs counsel did not want the trial court to give an
instruction to the jury regarding the comparative negligence of
the parents and counsel did not want the trial court to give a
jury instruction regarding each partys comparative
negligence. Plaintiffs counsel specifically asked for a
combined version of the comparative negligence, asking only what
percentage of the negligence that the estate bore.[3]

Moreover, plaintiffs counsel helped to
prepare the special verdict form that was given to the jury. The
special verdict form advised the jury that the trial court would
"reduce the total amount of the plaintiff, Estate of Adrian
Dedes damages . . . by the percentage of fault attributable
to the plaintiff, Estate of Adrian Dedes." Plaintiffs did
not object to the special verdict form. At no time before the
jury returned its verdict did plaintiffs request that the trial
court instruct the jury to apportion the relative fault among the
different parties. Finally, we note that at the posttrial motion
requesting that the trial court apportion relative fault to each
of the parties, plaintiffs counsel conceded that he did not
request a verdict form that separated each partys relative
fault.

Under these circumstances, plaintiffs have
forfeited any claim of error with respect to the instructions or
verdict form concerning the comparative negligence apportionment.
MCR 2.516(C) states that a "party may assign as error the
giving of or failure to give an instruction only if the party
objects on the record before the jury retires to consider the
verdict." Similarly, MCR 2.514(C) states that if a special
verdict form is required, the trial court shall settle the form
of the verdict in advance of argument and in the absence of the
jury. In the present case, plaintiffs have clearly waived the
issue of comparative negligence apportionment with respect to the
jurys instructions and the special verdict form. Plaintiffs
should have requested an instruction that the jury apportion
negligence separately with regard to the parents and the
siblings, but they clearly elected not to do so. Accordingly,
plaintiffs have waived this issue. See Phinney v Perlmutter,
222 Mich App 513, 544; 564 NW2d 532 (1997) ("a party may not
take a position in the trial court and subsequently seek redress
in an appellate court on the basis of a position contrary to that
taken in the trial court").

II

On cross appeal, defendants argue that the
trial court erred in denying their motion for a judgment
notwithstanding the verdict (JNOV).[4]They contend
that there was no evidence to support the jurys finding
that they were grossly negligent or that their actions were a
proximate cause of the injuries. The standard of review for a
JNOV requires review of the evidence and all legitimate
inferences in a light most favorable to the nonmoving party. Orzel
v Scott Drug Co, 449 Mich 550, 557; 537 NW2d 208 (1995). Only
if the evidence so viewed fails to establish a claim as a matter
of law, should a motion for JNOV be granted. Id., p 558.

A

With respect to Asch, we agree with defendants
that there was no evidence presented to indicate that she was
grossly negligent. Asch, a governmental employee, is immune from
tort liability unless plaintiffs showed that her conduct amounted
to gross negligence that is the proximate cause of the injury.
MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). The statute defines
gross negligence as "conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results." Id.
The evidence showed that Asch was responsible for establishing
bus stops. During the 1988-1989 school year, the Dedes children
were instructed to wait on a grassy knoll that was off the edge
of the road, approximately ten feet on the Dedes property.
This waiting area was determined initially by Asch and Shifferd.

At a meeting held on November 15, 1988, with
Asch, Shifferd, Mr. And Mrs. Dedes, the school principal, the
school social worker, and Adrian Dedes, Asch confirmed with Mrs.
Dedes where the children were to wait for the bus. The meeting
was in response to complaints that Asch had received about the
Dedes children standing too close to the road on some mornings
while waiting for the bus. At the meeting, Asch also discussed
with the Dedes, Adrians behavior on the bus and her
closeness to the road on some mornings. Mrs. Dedes was given a
manual that had been prepared concerning the responsibility of
the parent as well as the school and the student when riding the
bus. Mrs. Dedes was also advised of the rules regarding waiting
for the bus and staying at least ten feet back from the roadway.
Asch told Mrs. Dedes that if the children were unsure about where
to stand, then she should paint a line or lay a rope in the yard
for them to wait behind. There was additional evidence that Asch
personally went to the bus stop to measure distances to ensure
that the designated bus stop complied with all laws.

There was really no other evidence concerning
Aschs involvement in this case. Even taken in a light most
favorable to plaintiffs and making all reasonable inferences in
favor of plaintiffs, this evidence is insufficient to establish
that Aschs conduct was so reckless as to demonstrate a
substantial lack of concern for whether an injury resulted in
establishing the bus

With respect to Shifferd, we find that there
was sufficient evidence presented such that the jury could find
that her conduct was grossly negligent. Evidence was presented by
Lauren Dedes that approximately two weeks before the accident,
Shifferd told her and Adrian that as soon as they saw the bus
coming, to wait on the gravel with their toes touching the road
or they would not be picked up. Mrs. Dedes also testified that
after the accident, Lauren informed her that about a week or
week-and-a-half earlier, the bus stop had been changed so that
Lauren and Adrian would be waiting directly across from other
children boarding the bus in order to expedite the process. There
was additional testimony from Mrs. Dedes that Shifferd had
earlier told Mrs. Dedes that she wanted the children to stand by
the side of the road so that she could see them in order to stop.
There had been problems with the children not being picked up by
the bus because the children stood at the top of a hill and the
bus driver could not see them. Later, after speaking with
Shifferd, Asch, and the school principal about the children not
being picked up, Shifferd told Mrs. Dedes that she wanted the
children to stand by the mailbox so that she could see them.
However, Mrs. Dedes forbade the children from standing so close
to the road. Finally, evidence was presented by Asch and
defendants expert that to instruct a child to stand on the
gravel portion of the shoulder of Ten Mile Road would show a
reckless disregard for the safety of an individual.

Accordingly, we find that sufficient evidence
was presented to create a question of fact with respect to
whether Shifferd instructed the children to wait by the road. The
trial court did not err in denying Shifferds motion for
JNOV with respect to the gross negligence issue.

III

Defendants also argue that there is no evidence
that their conduct was the proximate cause of the injuries
suffered. To prove proximate cause, plaintiffs had to prove two
separate elements: (1) cause in fact, and (2) legal cause. Skinner
v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994).
Defendants attack only the cause in fact element. The cause in
fact element generally requires a showing that but for the
defendants actions, the plaintiffs injury would not
have occurred. Id., p 163.

Given our resolution that there was no evidence
that Aschs conduct could be considered grossly negligent,
we need only consider whether Shifferds conduct could be
considered a proximate cause of the childrens injuries.
While there was no evidence presented to indicate that the
automobile that struck the children left the road, there was
evidence that Adrian leaned into traffic and her book bag got
caught on the automobile and pulled her into it. But for the
children being told to stand on the gravel shoulder with their
toes touching the road, Adrian would not have been close enough
to the road to be able to lean into traffic such that her book
bag would be caught on a passing automobile.

Accordingly, taken in a light most favorable to
plaintiffs and making all reasonable inferences in favor of
plaintiffs, there was a factual question for the jury to resolve
regarding the cause in fact of the injuries. The trial court did
not err in denying the motion for JNOV on this basis.

IV

Lastly, defendants argue that they should not
be held responsible for the accrual of prejudgment interest from
the entry of the order in the trial court granting their motion
for summary disposition and our Supreme Courts opinion
reversing the trial courts order, a period of over four
years. This Court reviews de novo the award of prejudgment
interest under MCL 600.6013(1); MSA 27A.6013(1). Phinney,
supra, p 540.

MCL 600.6013(1); MSA 27A.6013(1) provides that
interest shall be allowed on a money judgment recovered in a
civil action and MCL 600.6013(6); MSA 27A.6013(6) provides that
prejudgment interest is calculated from the date of filing the
complaint. The purpose of prejudgment interest is to compensate
the prevailing party for expenses incurred in bringing actions
for money damages and for any delay in receiving such damages. Phinney,
supra, pp 540-541. However, prejudgment interest may be
disallowed for periods of delay where the delay was not the fault
of, or caused by, the debtor. Id., p 541.

Here, we find that the fault for the delay was
not attributable to defendants. This case concerned at least one
issue of such significance that our Supreme Court agreed to rule
on it following an application for leave to appeal sought by the
plaintiffs. To allow interest to continue to accrue during an
appellate process would hinder parties from asserting new and
innovative arguments in the trial court for fear that interest
will continue to accrue on a claim which may be reversed during
the appeal process. Therefore, because the fault for the delay is
not properly attributable to defendants, the trial court erred in
granting prejudgment interest for the period that the matter was
on appeal. We remand to the trial court for it to recalculate
interest from the time of filing the complaint until the judgment
is satisfied, abating the interest for the period that the matter
was on appeal.

Affirmed in part, reversed in part, and
remanded for further proceedings consistent with this opinion.
Jurisdiction is not retained.

[2]Plaintiffs
originally filed suit against Anthony Neumaier, Neumaiers
father James (the owner of the automobile), the Oakland County
Road Commission, and the South Lyon School District. Plaintiffs
ultimately settled their claims with the Neumaiers and the road
commission, and the school district was dismissed by the trial
courts order granting its motion for summary disposition.

[3]We note that it
was defendants counsel who initially requested that the
trial court give a special instruction regarding the comparative
negligence of the parents. After further discussing the issue in
chambers, the trial court declined to give defendants
requested instruction regarding the comparative negligence of the
parents. This was plaintiffs position at the time.

[4]The defendants
had moved for a directed verdict at the close of plaintiffs
proofs, but the trial court took the motion under advisement and
ruled on it after the jurys verdict.

I think this case should go back to the trial
judges successor to determine the issue of comparative
negligence as to the various beneficiaries under the rule
announced in Hierta v General Motion Corp (Supplemental
Opinion), 148 Mich App 796; 385 NW2d 690 (1986). As to all
other issues, I concur in the results reached by the majority.
That is, I disagree with Sec. I, but agree with Sec. II through
IV.

Prior to closing arguments there was a
discussion regarding the propriety of giving a comparative
negligence jury instruction as to Adrians parents. While it
is true that plaintiffs counsel was leery about the effect
of such an instruction, it is not correct, I think, to charge the
plaintiffs with a waiver of the claims of the other beneficiaries
of the estate thereby permitting them to be charged offsets for
which there clearly could be no predicate arising out of the
siblings conduct. The jury awarded damages of $1,095,000
for the total loss of all the family members. The jury was
instructed to find comparative negligence on the part of only the
decedent and the other injured child. It should be clear to any
reader of the record that the eight year old, Lauren Dedes, was
probably not comparatively negligent and the ten year old
decedent may have been slightly comparatively negligent. The
siblings of the deceased child could not have been comparatively
negligent and that includes the other injured child as well as
Jessica and Michael. Obviously the great weight of the 85%
comparative negligence was laid on the shoulders of the parents.
It should be sorted out and adjusted appropriately in the trial
court and if that is not possible, a new trial on the issue of
comparative negligence only, should be granted. In other words, I
believe the trial court erred in determining that the sum total
of comparative negligence(s) assessed by the jury should redound
against each family member; should be combined and used to offset
the entire verdict. In response to the motion to determine
comparative negligence, the trial court ruled that the
"combined percentage negligence of any member of the estate
reduces all damages awardable under the Wrongful Death Act."
In Byrne v Scheiders Iron and Metal Inc, 190 Mich
App 176; 475 NW2d 854 (1991), this court held that the
comparative negligence of a parent may not be imputed to and
offset against the recovery attributable to a child. Further
that:

[t]he trial court did not err in submitting
to the jury issue of the parents comparative negligence
in relation to their recovery for loss of services, society
and companionship. [Id. at 189].

Here the allocations of comparative negligence
against the damages all but subsumes the verdict.[5] Plaintiffs in their brief on appeal argue the 85%
comparative negligence could be distributed among the various
claimants by assigning 42 ½ % to the mother, 42 ½ % to the
father, and nothing to the siblings, thus, resulting in a net
verdict of $839,000. This all presuming each of the five
beneficiaries received an equal share. In another scenario, the
siblings could be limited to 10% each of the damages awarded
resulting in less damage recovery of $692,672. Plaintiffs do not
present a scenario under which each of the parents could have
been determined to be 85% negligent as to his and her claim as
that would result in offsets of 170% as to all five discrete
claims. No comparative negligence could be assigned to any of the
siblings including Lauren, who the jury exonerated with respect
to her own claim; thus, the clash focuses on the three weights on
one side of the scale: the child Adrian, her mother, Jean, the
father, Michael. Are they one lump, two or three? The majority
concludes that the plaintiffs waived this overwhelming issue.
That is not correct. During consideration of the jury
instructions, defendant first proposed a jury instruction on the
comparative negligence of the parents. The plaintiffs proposed a
jury instruction for the comparative negligence of the individual
children. Plaintiffs counsel would have preferred to avoid
the defendants instruction but the court stated:

I think this is an appropriate instruction.
Its not covered by the regular instructions. Do you
want to discuss that? Do you know which one Im talking
about?

MR. DOMAL [plaintiffs counsel]: I
dont have a copy of those specials [requests?].

The Court: In determining the parents
claim[s?] for loss of services, society and companionship,
you may reduce the recovery by the amount of the
parents comparative negligence. I cant see
anything against it. It isnt covered in the standard.

Mr. DOMAL [plaintiff counsel]: It
wasnt pled that way, and it wasnt tried that way
and the instructions of the form thats been done
doesnt even address that.

The COURT: You have a comparative form,
dont you, on the estate.

Mr. DOMAL: We have a comparative as to the
individual[s?].

The trial judge determined that she would
instruct the jury with regard to the parents potential
comparative negligence. The following exchange then occurred on
the record:

"MR. DOMOL [plaintiff attorney]:
Im a little puzzled, I guess, if the court is going to
give the instruction that [defendants] requested in regard to
the comparative part of the parts . . .

MR. DOMOL: And there are claims in the
estate that arent necessarily the parents.

THE COURT: Oh, but the instruction that I
thought I saw was limited to when youre talking about
their loss of service to society . . .

MR. DOMOL: But on the . . .

THE COURT: . . . you may reduce the
recovery by the amount of the parents comparative negligence.

MS. NEAL [defendants attorney]: That
goes to damages, your Honor, in the wrongful death action.

MR. DOMOL: It may go to the damages in the
wrongful death action as to the parents individual damages,
if I understand the Courts position, but it
wouldntwhy should it affect the siblings claims,
is my question.

THE COURT: Well, what we do as we live in
this ideal world that we think the jury is going to consider
the parents claim, the siblings complaint and were
going to consider all of that. Well, what were saying
is when youre considering the parents, then think in
terms of what their negligencehow that produced [sic]
and to that extent, thats the law of the state and I
think its appropriate to give.

MR. DOMOL: And again, Id point out
that was not the way this casewas not an issue in the
openings. There was not an issue during the course of the
pretrial of this case. Im frankly surprised that it
becomes an issue at this point.

MS. NEAL: We have been talking about this
jury instructions from the first day of trial.

THE COURT: Yeah but wethat
wasnt there. Let me think about that during the
closings and dont argue the instructions. We[sic-you?]
can argue comparative and Ill think about it.

This issue was not addressed again prior to the
jury retiring to deliberate. The special jury verdict form, which
was approved by plaintiffs, did not direct the jury to apportion
relative fault among the claimants if and when they reached a
verdict.

In advancing the motion to apportion it was
plaintiffs position, based on off-the- record discussions
with the jurors after trial, that the jury had found
Adrians parents to be comparatively negligent but did not
believe that either Adrian or her siblings were negligent. That
because of the dictates of the special verdict form, the jury
could not and did not apportion comparative negligence against
each claimant of the estate. The trial judge did not revisit her
pre-argument injunction that you "can argue comparative and
Ill think about it", she merely sublimely concluded
that Byrne, supra was wrongly decided. Never did she rule
that plaintiffs had waived the issue. Even learned trial judges
make mistakes. Under the circumstances and in fairness to the
claimants who were not negligent, I believe that this matter
should be remanded to the trial court for a new trial solely on
the issue of comparative negligence, Hierta, supra, 148
Mich App at 798, unless the parties are unable to convince the
trial court successor of an appropriate allocation of the
comparative negligence issue on remand.

/s/ Michael J. Kelly

FOOTNOTES:

[5] There seems to be some confusion as to whether the
verdict was $1,035,000 in which event the award would be
$155,250, or $1,095,000 in which event it would be $164,250.